1 Judge Jones concurs only in the result. Judge Smith

j oins in parts I, II.A.2, II.B., and II.C and concurs in the

result. REVISED - JUNE 30, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________________

No. 96-50352

____________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID BRACE,

Defendant-Appellant.

________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

June 24, 1998

Before POLITZ, Chief Judge, KING, JOLLY, HIGGINBOTHAM, DAVI S

, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,

BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges. 1

RHESA HAWKINS BARKSDALE, Circuit Judge:

We granted rehearing en banc to consider whether, in order to

rebut the entrapment defense raised by David Brace, the Government

was required to prove “positio nal predisposition” on his part, a

new requirement utilized in another circuit and by the panel; but,2

we conclude that we cannot address that subissue because it was

neither preserved in district court nor even raised, for the first

time, on appeal. Instead, at issue is simply whether, under our

existing precedent, Brace was entrapped as a matter of law.

A jury convicted Brace and Shannon Knox of money laundering.

On appeal, the panel affirmed as to Knox; but, it reversed Brace’s

convictions, fi nding entrapment as a matter of law, because the

Government failed to prove “positional predisposition” on the part

of Brace. In taking this case en banc, we severed Knox, with the

panel opinion as to him remaining unaffected; of course, as to

Brace, we vacated that portion of the opinion as it related to him.

United States v. Knox

, 112 F.3d 802 (5th Cir.), severed and granted

rehearing en banc by 120 F.3d 42 (5th Cir.), cert. denied as to

Knox

,

___ U.S.

___, 118 S. Ct. 616 (1997). Upon rehearing en banc

as to Brace, we AFFIRM

.

I.

Brace was the pastor of Faith Metro Church in Wichita, Kansas.

In 1991, the church began construction on an 80,000 square foot

building, financed through bonds, which required monthly payments

of approximately $65,000. The church also owned and operated five,

largely unprofitable, radio stations in the Wichita area, which had

required an investment of approximately $500,000 over three years.

In 1993, due to financial difficulties arising from these3

obligations, the church issued bonds and sought s hort-term,

unsecured loans.

Brace met in May 1994 with Mike Clark, a financial consultant

from Houston, Texas, and Clark’s assistant, Knox. During this

meeting, Brace decided to pursue a limited private offering in the

amount of $10.8 mil lion to retire the church’s outstanding debt.

The church trustees approved the plan and the offering began in

September 1994; but, there were few responses and no money was

raised. Shortly after the offering began, Knox met Roy Clarkston,

a financier, in October or November 1994; and Knox gave Clarkston

a copy of the private offering prospectus. In February 1995,

Clarkston told Knox that he knew of some “South American investors”

who might be interested in Faith Metro Church.

Concerning those “investors”, while Brace had been attempting

unsuccessfully to secure financing for his church in Kansas,

undercover federal ag ents were conducting a money laundering

investigation in San Antonio, Texas. Beginni ng in October 1994,

around the time that Knox first met with Clarkston, Drug

Enforcement Administration Special Agent Gonzalez met several times

with Clarkston, who was suspect ed of money laundering. Agent

Gonza lez identified himself as a Columbian narcotics trafficker

seeking to launder money from cocaine sales.

In early March 1995, Clarkston contacted United States Customs

Special Agent Cisneros, who was operating undercover as the4

“accountant” for Agent Gonzalez, and informed Agent Cisneros that

he had a “major big time guy” from “a church group” who was “very

interested” in talking to Cisneros and wanted to “close” the deal

the following weekend. (During the investigation, conversations

between the Agents and Brace, Knox, and Clarkston were recorded, by

video and/or audio, with the exception of the two following 17

March meetings.)

On 17 March 1995, Agents Gonzalez and Cisneros met with

Clarkston at a San Antonio hotel. Clarkston stated that he knew a

minister who was interested in laundering the cocaine mon ey, and

that the minister’s financial advisor was in town and eager to meet

with th em. A t this time, the Agents had no knowledge of the

identity of either Brace or Knox. Agent Gonzalez told Clarkston

that he did not want any innocent people involved in the operation

and asked if the minister (Brace) knew Gonzalez was a cocaine

trafficker looking to launder cocaine proceeds. Clarkston stated

that the minister and his financial advisor knew and did not care.

That same afternoon, Clarkston brought K nox to the hotel to

meet the Agents. Knox told them that he was the representative for

the minister and wanted to negotiate a deal. The Agents told Knox,

early in the conversation, that Agent Gonzalez was a Colombian drug

trafficker; that Agent Cisneros was the accountant for the drug

organization; and that th e deal involved laundering money from5

cocaine sales. Knox responded that he and the minister knew this

and were not concerned about the money’s source.

Knox explained that Brace’s nonprofit Kansas corporation, New

Life Fellowship, Inc., d/b/a Faith Metro Church, could launder the

money; and, that the transaction would not arouse suspicion,

because a minister was involved. Knox provided a copy of the

private offering prospectus for Faith Metro Church. Agent Gonzalez

told Knox that the Agents needed to meet with Brace to ensure that

he understood that they wer e drug traffickers seeking to launder

cocaine proceeds. Knox stated that Brace would gladly meet with

them and could do so within 12 hours.

Over the next few days, Clarkston left telephone messages with

Agent Cisneros that Knox and Brace were in San Antonio and ready to

meet with the undercover Agents. On 24 March 1995, Agents Gonzalez

and Cisneros met Brace, along with Clarkston and Knox, in a San

Antonio hotel room. Gonzalez stated that he was authorized to

“invest” up to $10 million, but that Knox and Brace would first

need to transfer some test amounts, around $100,000.

Brace quickly agreed, assuring that he would do whatever was

necessary in order to accomplish his goal and satisfy Gonzalez’s

organization. The Agents then stated that they needed to “go into

the delicate issues”, so that “there [were] no misunderstandings”

or “confusion as to where the money [was] coming from”. During the

meeting, Agent Cisneros stated: “[Agent Gonzalez] plainly puts it6

... that the money is from the sale of cocaine trafficking. That

it is narcotics money. ... he is asking you to launder money”.

Brace responded: “I have monies that I know that come to the

church. I don’t have a questionnaire ... where these monies come

from.” Brace told the Agent that he knew that he had received

funds “from sources that, uh, would be questionable”. Brace then

stated: “I prayed to God ... because I wanted to know if I was

supposed to do this”. According to Brace, “God said that ... He

helped put this []together.” Finally, Brace told the Agents: “I

appreciate the fact that you want to be very straight forward and

up front with me. ... but, uh, that does not concern me, really.”

Brace and Knox stated that they wer e surprised, however, by

the $10 million figure, because they had originally bee n seeking

only $3 million. Brace and Knox stated that they would need some

time to figure out how long it would take to transfer and repay

this larger amount. Agent Gonzalez explained that he would give

various denominations of cash to Knox and Brace; and they responded

that they had already discussed those matters, although the Agents

had never before met with Brace. G onzalez agreed to pay Brace,

Knox, and Clarkston six percent of the transferred amount. Brace

assured the Agents that h e was ready to transfer the test money,

but Agent Gonzalez told him to have patience and wait.

A month later, on 24 April 1995, Knox telephoned Agent

Cisneros, informing him that Brace was in San Antonio and ready to7

take the first test money. Knox stated also that he and Brace had

already “contrived a system” to quickly d eposit and transfer the

first $100,000.

Two days later, Agent Cisneros met with Brace and Clarkston in

San Antonio. At the beginning of the meeting, Agent Cisneros told

Brace that the Colombian organization had just “crossed” three tons

of cocaine into the United States, and explained, “[s]o

... now

there’s a lot of profit”. Agent Cisneros gave Brace the account

number for an undercover account in a London bank. Brace stated he

would wire the $100,000 from his Wichit a bank, but suggested

transferring the money instead to a domestic bank, because it would

clear faster and because Faith Metro Church had not previously

transferred money to a foreign bank. Agent Cisneros told Brace

that “t he Colombians” probably would not change the destination

account; but, that all other details of the transaction were left

to Brace.

Brace also discussed how the $10 million would be repaid: he

planned to make payments of $50,000 per month for the first two

years; of $100,000 per month for the next two years; and then pay

the balance. During this meeting, undercover Agents Gallman and

Pineda gave $100,000 to Brace. Agent Cisneros offered Brace two

opportunities to withdraw from the transaction, but Brace declined

both times.8

Brace enlisted Mark Raccuglia, a staff member at Faith Metro

Church, to help launder the money, giving him specific instructions

to obtain cashier’s checks with different remitters from certain

banks and to deposit them in specific accounts. And, Brace

instructed Raccuglia to use cashier’s checks in amounts less than

$3000 each, in or der to avoid the internal records policy at the

banks.

Brace successfully transferred this first test amount to the

London account, and told Cisneros that he was ready to transfer the

next test amount. Knox telephoned Agent Cisneros on 3 May and told

him that Brace received $3000 as his share for the first test

transfer.

Two days later, on 5 May, Agents Cisneros and Gallman met with

Brace in San Antonio to discuss the second test transfer. Brace

was told to make a transfer to a domestic account, ostensibly Agent

Gallman’s. Brace said that there were no difficulties running funds

through his church’s accounts, because they were listed as

offerings or donations. Brace also suggested tha t, to avoid

suspicion, they not transfer the same amount again.

Brace told Agent Gallman that he would account for the money

transfers in installments, carried on his books as a loan, and

would assimilate it over time through church offerings. And, Brace

explained that, because Faith M etro Church was a 501(c)(3)

corporation, the books were not public records. Brace informed the9

Agents that he would explain the next test transfer as an advance

payment on interest for the large loan he would soon be receiving.

Brace indicated that his involvement in this operation was

“supposed to happen” and that

the fac t is that I’m not ... getting a whole

lot of

... respect.

... I almost have to go to

[] bankers and [] show them that ... I do not

need the money in order for them to loan it to

me. And then [], frankly [], ... I’m just

tired of being somebody’s whipping dog.

After receiving the second $10 0,000 test amount, Brace

commented to the Agents, “I have a feeling that neither one of you,

have ever come across a pastor like me”. Brace confirmed that he

would again receive $3000 as his commission. (Brace apparently had

excluded Clarkston from this meeting bec ause of potential

disagreement over how to split the six percent commission.)

When Brace returned to Kansas with the second $100,000, he

directed Raccuglia to research cash reporting requirements.

Raccuglia told Brace that his research indicated that Brace was

money laundering, but Brace assured him this was not true. Brace,

again with Raccuglia’s assistance, successfully transferred the

money from the church’s Wichita bank; this time, to a domestic

bank.

After the second test transfer, Knox told Agent Cisneros that

Brace had 11 accounts set up through which he could move $4 million

in 30 days. Knox said that Brace was willing to make another test

transfer and that “ten million dollar s is just the tip of the10

iceberg that we can put through [Faith Metro Church]. It’s turning

into a washing machine real fast”. In a subsequent telephone

conversation between Agent Cisneros an d Brace, Brace reiterated

Knox’s information about the 11 accounts and said that he had

acquired a large safe in which to store the money.

On 12 May, Agent Cisneros met with Brace, Knox, and Clarkston

and delivered the last test amount, this time for $150,000. Agent

Cisneros stated that “the Colombians” would soon start with $5

million of the “big money”, which would include a bonus for Brace.

Brace responded that he had someone researchi ng “what raises

eyebrows overseas”, and that he could transfer the test amount

using accounts at three separate banks. Agent Cisneros emphasized

that the Colombians were dangerous dope dealers.

Brace and Knox successfully transferred the third test amount.

Brace told Raccuglia that Knox handled the transfer, because Brace

“wanted [Knox] to be as involved in it as he was”.

On 18 May, Knox telephoned Agent Cisneros and told him that he

and Brace were in San Antonio and ready to do the big deal (even

though no arrangements had been made by Agent Cisneros for it to

happen then). Brace telephoned Agent Cisneros later and apologized

for appeari ng too anxious. Agent Cisneros testified that he

delayed further action, repeatedly emphasizing that the Colombians

were ruthless drug dealers, so that Bra ce and Knox would have an

opportunity to “cool down” and withdraw. During this “cool down”11

period, Brace repeatedly tried to contact Agent C isneros by

telephone.

On 16 June, Agent Cisneros had a telephone conversation with

Brace and Kno x. Knox said that he and Brace, after working

together for 48 hours, had the necessary equipment to transfer the

money. Brace added that he had several suitcases of different

sizes and asked how the money was packaged. Agent Cisneros

responded that the Colombians were thinking about waiting awhile,

to which Brace replied:

I’m not goin’ anyplace.

....

Uh, I’m not ancy. Uh, you know, I’m ready

just like you to finish it. Uh, I’ve got my

things in place at home. Uh, I’m prepared.

Uh, in fact, I’m [] probably over-conservative

and over-killed at home as far as protect ion

and as far as, uh, making sure of safety and

[] moving things....

On 21 June, Brace and Knox met with u ndercover Agents in a

parking lot in San Antonio and accepted three canvas bags filled

with paper clippings approximating the weight of $10 million in

cash. Brace and Knox left the parking lot in Brace’s car with the

bags, intending to drive to Kansas, but were arrested immediately.

The arresting Agents found a .380 caliber semi-automatic pistol in

the back seat of Brace’s car, along with a fully -loaded clip of

ammunition. Brace had bought the pistol the day before his arrest,12

because he thought that “the Colombians” expected him to protect

the money.

Brace and Knox signed wri tten statements admitting to their

involvement in the money laundering. Each was charged with one

count of conspiring to launder money and one count of laundering

money; Brace, also on two other money laundering counts. Clarkston

was also indicted; he pleaded guilty.

In December 1995, Brace and Knox were tried jointly; their

sole defense was entrapment. A jury convicted them on all counts,

and Brace was sentenced to 175 months i mprisonment and fined

$10,000.

Knox’s convictions and sentence were affi rmed by a panel of

our court, Knox

, 112 F.3d at 810-14; but, it reversed Brace’s

convictions, holding that, because the Government failed to prove

the element of “positional pr edisposition” beyond a reasonable

doubt, Brace w as entrapped as a matter of law. I d

. at 806-10.

S ubsequently, our court severed the affirmance with respect to

Knox; but, as for Brace , we vacated that portion of the panel

opinion pertaining to his c onvictions and granted rehearing en

banc. Knox

, 120 F.3d at 43.

II.

The issues presented by Brace on appeal are that the district

court committed reversible error: (1) by failing to hold he was

entrapped as a matter of law; (2) by us ing our pattern jury13

instruction on entrapment; and (3) by incorrectly calculating his

sentence. Our reason for rehearing was to address, concerning the

entrapment issue raised by Brace, the panel’s adoption of a new

“positional predisposition” requirement.

A.

The Supreme Court first recognized the entrapment defense in

Sorrells v. United States

, 287 U.S. 435 (1932). It described

entrapment as “when the criminal design originates with the

officials of the government, and they implant in the mind of an

innocent person the disposition to commit the alleged offense and

induce its commission in order that they may prosecu te”. Id. a t

442 (emphasis added).

[T]he defense of entrapment is not simply that

the particular act was committed at the

instance of government officials.

... T he

predisposition and criminal design of the

defendant are relevant

. But the issues raised

and the evidence adduced must be pertinent to

the controlling question whether the defendant

is a person otherwise innocent whom the

government is seeking to punish for an alleged

offense which is the product of the creative

activity of its own officials.

Id. at 451 (emphasis added).

The Court found entrapment as a matter o f law in S herman v.

United States , 356 U.S. 369 (1958), when a drug addict repeatedly

rejected offers from an undercover officer to buy drugs, including

appeals of sympathy for the undercover officer’s needs and

inducements for the addict to return to his drug habit. “To14

determine whether entrapment has been established, a line must be

drawn between the trap for the unwary innocent and the trap for the

unwary criminal”. Id. at 372

.

In performing this de termination, the Court instructed that

the defendant should be subjected to “an ‘appropriate and searching

inquiry into his own conduct and predisposition’ as bearing on his

claim of innocence”. I d. at 373 (quoting Sorr els , 287 U.S. at

451). Therefore, S herman focuse d on the accused, not the

undercover officer, and found that he was not predisposed because,

inter alia , there was a lack of evidence that he was currently in

t he drug trade, no drugs were found in his residence, he did not

appear to make a profit on the sales, and he was trying to overcome

his drug habit. Id. at 375-76

.

United States v. Russell

, 411 U.S. 423 (1973), relying on

Sorrells and Sherman , keyed on the defendant’s subjective intent

,

rather than the undercover officer’s objective conduct : “It is only

when the Government’s deception actually i mplants the criminal

design in the mind of the defendant that the defense of entrapment

comes into play”. I d. at 436 (emphasis added). This test would

negate an entrapment defense for defendants who are ready to commit

a crime, even though they were subjected to inducements that “might

have seduced a hypothetical individual who was not so predisposed”.

Id. at 434

.15

In Hampton v. United States

, 425 U.S. 484 (1976), the Court

revisited this subjective predisposition standard, holding that

“ Russell definitively construed the defense of entrapment to be

focused on the question of predisposition”. I d. at 492 n.2

(Powell, J., concurring). However, only a plurality of the Court

agreed that R ussell stood for the proposition that, when the

defendant’s predisposition is proven, an entrap ment defense can

never be established solely on governmental misconduct. I d. at

488-89

.

Mathews v. United States

, 485 U.S. 58 (1988), synthesized

Court precedent on the entrapment defense:

[A] valid entrapment defense has two related

elements: government inducement of the crime,

and a lack of predisposition on the part of

the defendant to engage in the criminal

conduct.

... Predisposition, “the principal

element in the defense of entrapment,”

... focuses upon whether the defendant was an

“unwary innocent” or, instead, an “unwary

criminal” who readily availed himself of the

opportunity to perpetrate the crime.

Id . at 63 (citations omitted).

In 1984, based upon the foregoing entrapment precedent, our

court reaffirmed the key components of the defense:

Consistent with this summary of Supreme

Court directives, our inquiry always has been

on the defendant’s predisposition, his intent

or willingness

-- before contact with government

agents and inducement --to commit the crimes

charged.

... The conc e rn is thus that the

accused is not guilty, since he had no

criminal intent not implanted by the16 government , rather than that he is guilty but

may avoid the consequences of his criminal

conduct because of the government’s undue

inducement.

United States v. Henry

, 749 F.2d 203, 210 (5th Cir. 1984) (en

banc) (emphasis added).

Almost eight years later, however, in Jacobson v. United

States

, 503 U.S. 540 (1992), the Court held that a defendant was

entrapped as a matter of law when officers made repeated attempts,

for two-and-a-half years, to induce him to purchase child

pornography through the mails. Due to the Government’s relentless

conduct, which included urging the defendant to take a stand

against censorship and for freedom of expression, the C ourt held

that rational jurors could not find, beyond a reasonable doubt,

“ that petition er possessed the requisite predisposition prior to

the Government’s investigation and that it existed independent of

the Government’s many and varied approaches to petitioner ”. I d. at

553 (emphasis added).

For our purposes here, one post- J acobson case, from another

circuit, also comes into play: U nited States v. Hollingsworth

, 27

F.3d 1196, 1200 (7th Cir. 1994) (en banc). It interpreted J acobson

to require evidence that the defendant was “so situated by reason

of previous training or experience or occupation or acquaintances

that it is likely that if the Government had not induced him to

commit the crime some criminal would have done so”.17 Predisposition is not a purely mental state,

the stat e of being willing to swallow the

government’s bait. It has positional as well

as dispositional force. ... A public

official is in a position to take br ibes; a

drug addict to deal drugs; a gu n dealer to

engage in ill egal gun sales. For these and

other traditional targets of stings all that

must be shown to establish predisposition and

thus defeat the defense of entrapment is

willingness to violate the law without

extraordinary inducements; ability can be

presumed. It is different when the defendant

is not in a position without the government’s

help to become involved in illegal activity.

... Such cases, illustrated by J acobson [,]

... are rare.

Id. The Seventh Circuit found that the defendants, a farmer and an

orthodontist, were “objectively harmless”, because “[n]o real

criminal would do business with such [novices]”. Id. at 1202-03.

But see United States v. Thickstun

, 110 F.3d 1394, 1397-98 (9th

Cir.) (rejecting the Hollingsworth “positional predisposition”

standard), cert. denied , ___ U.S. ___, 118 S. Ct. 305 (1997).

1.

Brace claims that he was entrapped as a matter of law. The

Government acknowledges that it induced him to launder money.

Therefore, at issue is whether the evidence was sufficient to

prove, beyond a reasonable doubt, that he was predisposed to do so.

For deciding that issue, we must first examine subissues raised by

the parties. But, in so doing, we have discovered that, as

sometimes happens when we take a case en banc, this is an instance

in which the reason for rehearing evaporated, because a “positional18

p redisposition” subissue was neither preserved in district cour t

nor even presented, for the first time on appeal, to the panel.

It goes without saying that we are a court of review, not of

original error. Restated, we review only those issues presented to

us; we do not craft new issues or otherwise search for them in the

record. E.g.

, United States v. Johnson , 718 F.2d 1317, 1325 n.23

(5th Cir. 1983) (en banc) (we will not review improper jury

instruction if neither raised in trial court nor claimed on appeal

to be error). It is for the parties, those who have a stake in the

litigation, to decide which issues they want to pursue, at trial

and on appeal. Diverse reasons underlie the choices the parties

make. Likewise, other obvious factors come into play, such as

judicial efficiency and econo my, fairness to the courts and the

parties, and the public interest in litigation coming to an end

after the parties have had their fair day in court. C f

. United

States v. Atkinson

, 297 U.S. 157, 159 (1936); United States v.

Olano

, 507 U.S. 725, 731 (1993); United States v. Calverley

, 37

F.3d 160, 162 (5th Cir. 1994) (en banc), c ert. denied

, 513 U.S.

11 96 (1995). In short, it is not for us to decide which issues

should be presented, or to otherwise try the case for the parties.

Our role is indeed limited. Concerning our not acting as

legislators, Justice Cardozo admonished that a judge “is not a

knight-errant, roaming at will in pursuit of his own ideal of

beauty or of goodness”. C A RDOZO

, T HE N ATURE OF THE J UDICIAL P ROCESS 14119

(1921). Needless to say, the same is true regarding our not

addressing issues not presented to us.

In holding that Brace was entrapped as a matter of law, the

now-vacated Brace-portion of the panel opinion adopted the abovediscussed “positional predisposition” requirement espoused by the

en banc Seventh Circ uit in H ollingsworth

. K nox

, 112 F.3d at 808

(vacated) (holding that “we must look not only to the defendant’s

mental state (his ‘disposition’), but also to whether the defendant

was able and likely, based on experience, training, and contacts,

to actually commit the crime ( his ‘position’ )”) (emphasis added).

Notwithstanding the panel’s fidelity, the problem is that, as

discussed infra

, this “positional predisposition” subissue or

element was not presented by Brace either to the district court or

on appeal. And, as noted, our en banc reconsideration vacates the

panel opinion as to Brace. K nox

, 120 F.3d at 42; 5th Cir. R. 41.3;

see, e.g., Leffall v. Dall as Indep. Sch. Dist. , 28 F.3d 521, 529

n.2 (5th Cir. 1994). In short, the new “positional predisposition”

requirement adopted by the now-vacated Brace-portion of the panel

opinion is no more. The reasons why this requirement or element is

not at issue follow.

Our court held, just eight months after Brace’s December 1995

trial, that our pattern jury instruction on entrapment, quoted

below, reflects the holding in Jacobson, decided in 1992. United

States v. Hernandez

, 92 F.3d 309, 311 (5th Cir. 1996), cert.20

denied

,

___ U.S.

___, 117 S. Ct. 1437 (1997). In fact, in the case

at hand, the panel rejected a challenge by Knox to the instruction,

citing Hernandez

, without fu rther discussion. K nox

, 112 F.3d at

810 (non-vacated portion).

At trial, Brace did not object to Fifth Circuit Pattern Jury

Instruction No. 1.28. It provides in relevant part:

The defendant asserts that he was a

victim of entrapment.

Where a person has no previous intent or

purpose to violate the law, but is induced or

persuaded by law enforcement officers or their

agents to commit a crime, that person is a

victim of entrapment, and the law as a matter

of policy forbids that person’s conviction in

such a case.

On the other hand, where a person already

has the readiness and willingness to break the

law, and the mere fact that government agents

provide what appears to be a favorable

opportunity is not entrapment. For example,

it is not entrapment for a government agent to

pretend to be someone else and to offer

... to

engage in an unlawful transaction.

If, then, you should find beyond a

reasonable doubt from the evidence in the case

that, before anything at all occurred

respecting the alleged offense involved in

this case, the defendant was ready and willing

to commit a crime such as charged in the

indictment, whenever opportunity was afforded,

and that government officers

... d id no more

than offer the opportunity, then you should

find that the defendant is not a victim of

entrapment.

On the other hand, if the evidence in the

case should leave you with a reasonable doubt

whether the defendant had the previous intent

or purpose to commit an offense of the21 character charged, apart from the inducement

or persuasion of some officer

.. . of the

government, then it is your duty to find the

defendant not guilty.

The burden is on the government to prove

beyond a reasonable doubt that the defendant

was not entrapped.

(Emphasis added.) As stated, this instruction is a correct

statement of the holding in Jacobson

.

Brace’s supplemental (en banc) brief, in responding to our en

banc court’s expr essed interest in the parties addressing

“positional predisposition”, urges, for the first time, that the

“positional pred isposition” element is embodied in this pattern

instruction. Specifically, he maintains that the terms “ready” and

“readiness”, as used in the instruction, equate with the “ability”

to commit a crime. (Presumably, this tardy contention is offered

to explain Brace’s failure at trial to object to the entrapment

instruction. If so, this, of course, is most inconsistent, as he

acknowledges, with his similarly belated challenge on appeal to the

pattern instruction, discussed infra

, which he concedes is reviewed

only for plain error in the light of his failure to object at trial

to the instruction. This tactic is not simply “alternative

claims”; Brace, instead, “wants to have his cake and eat it too”.)

The now-vacated Brace-portion of the panel opinion also looked

to “ability”: “A defendant may have the desire to commit the crime,

but may be without any ability to do so. The defendant is a ble to

commit the crime only when the government steps in and provides the22

means to do so”. K nox

, 112 F.3d at 807 (vacated) (emphasis added).

But, “ready and willing” is not necessarily synonymous with “ready,

willing, and able ”. C f. Hendershot v. Amarillo Nat’l Bank

, 476

S.W.2d 919, (Tex. Civ. App.--Amarillo 1972, no writ) (denying

specific performance of a contract, which requires the party

seeking performance to prove he is “ready, willing and able ” to

perform, because “a p pellant failed to establish the essential

element of his abili ty t o perform”) (emphasis added). (In

addition, the contention that the evidence fails to show that Brace

was able to commit the charged offenses is a dubious one. As

detailed infra , the successful completion of three test transfers

to bank accounts, both foreign and domestic, among other evidence

of Brace’s role in the money-laundering operation, appears

sufficient for the jury to find, beyond a reasonable doubt, that

Brace was more than “able” to money launder.)

In any event, it goes without saying that, when entrapment is

raised against a charged offense, the Government bears the burden

of demonstrating, beyond a reasonable doubt, that the defendant was

predisposed. E .g.

, United States v. Byrd

, 31 F.3d 1329, 1335 (5th

Cir. 1994), cert. denied

, 514 U.S. 1052 (1995). On the other hand,

the absence of entrapment is not an essential element of a charged

offense; instead, entrapment is an affirmative defense. S ee United

States v. Elorduy

, 612 F.2d 986, 990 (5th Cir.), cert. denied

, 4472 The dissent maint ains that we should consider the

positional predisposition subissue or element, even though the

parties have failed or chosen not to do so, on the basis that legal

analysis is an inherent function of an appellate court. This

sweeping statement need not be addressed, because the “positional”

subissue ( i.e., that Brace did not have the ability to carry the

underlying act to fruition) involves both f actual and le gal

23 U.S. 910 (1980). And, predisposition is generally a question of

fact for the jury. Sherman , 356 U.S. at 377.

It follows that, when entrapment is claimed, the Government

should not be required to meet its predisposition burden by

providing evidence to the jury on an unlimited number of possible

entrapment theories or elements, such as “positional

predisposition”, never raised or mentioned by the defendant by

motion, objection, or countervailing evidence. Cf. United States

v. Valencia

, 645 F.2d 1158, 1176 (2d Cir.) (Van Graafeiland, J.,

concurring in part and dissenting in part) (stating that a

defendant should not be allowed to deny commission of a crime and

then, at the close of all the evidence, ask for an entrapment jury

charge, because “[d]efense counsel should not b e allowed to

maneuver the Government out of introducing whatever proof it has on

the issue of defendant’s predisposition”), amended by 669 F.2d 37

(2d Cir. 1980). Therefore, it is unknown whether, at trial, the

Government would have introduced o r emphasized certain evidence

relating to Brace’s ability to money launder, if it had been placed

on notice in district court that ability was at issue. But, again,

it was not placed on such notice. 2components. As noted above, due to Brace’s not raising the issue

of positional predisposition, the Government and the district court

were never on notice that Brace’s ability to commit the crime was

at issue, legally or factually

.

Al ong this same line, we need not address the dissent’s

statement that, in criminal trials, sufficiency-of-the-evidence

issues may be preserved with general objections. Instead, as noted

supra , Brace’s sufficiency-of-the-evidence issue was preserved by

his general motions for judgment of acquittal; it is the factual

and legal subissue of whether Brace was in the position to commit

the crime that was never raised, and, hence not preserved.

24 In district court, in addition to not objecting to the

entrapment instruction, as discussed supra

, Brace did not otherwise

mention “positional predisposition”, or a similar c oncept. In

fact, Hollingsworth and Jacobson , relied upon heavily in the nowvacated Brace-portion of the panel opinion and decided long before

Brace’s trial, were not even cited by Brace at trial or sentencing.

During opening statements and closi ng arguments at trial,

Brace’s counsel urged that Brace was entrapped, but did not assert

“positional p redisposition”, or otherwise claim that Brace was

unable to money-launder. During his opening statement, which

covered 17 pages of transcript, Brace’s counsel made the following

comments that only hinted, at bes t, that the “positional

predisposition” concept would be urged at trial:

Roy Clarkston

... was really a money launderer

in the true sense.

....

[The Government] got [Brace] to launder one

hundred thousand dollars, and to do as they25 told him to do by sending that money to their

account wherever.

....

Roy Clarkston

... was sending letters and

telling [B race] how this would be done, and

we’re going to show you those letters that Roy

Clarkston created to give him the opportunity

to go to his ban kers, and perpetrate the

transactions that were necessary to do this.

....

[W]e’re going to show you the simple, almost

simpleton manner in which [Brace] was talking

to these people about [h ow] he had to learn

these things, and you know, he’d l earn them

and he’d learn them and he’d learn them. And

he’d do it, and he could do it, and he felt

that he could do it through his church and so

forth.

....

[Brace] was lying to them about his ability to

do what they wanted him to do....

Likewise, during closing argument , spanning 22 pages of

transcript, Brace’s counsel made only the foll owing remarks

suggesting a “positional predisposition” element:

[Y]ou talk about a virgin? [Brace ] goes out

and sends his assistant to the library, of all

places, to find out about money laundering so

that he could do it as effectively as possible

so that he could please them. And he did, and

he laundered.

....

God knows we have en ough dope peddlers and

pushers and money launderers who are

legitimately so.26

More importantl y, during the motions for judgment of

acquittal, at the close both of the Government’s case-in-chief and

of all the evidence, neither counsel for Brace nor for Knox

presented “positional predisposition” contentions, or otherwise put

the Government on notice that this new element was being relied

upon. At the close of the Government’s case-in-chief, defense

counsel stated:

COUNSEL FOR KNOX : ... I move for a directed

verdict of acquittal on behalf of defendant

Shannon Knox. I think what the evidence has

shown is entrapment as a matter of law. T here

is no evidence to predisposition , and there’s

plenty of evidence of i nducement. This is

entrapment as a matter of law. So we move for

a directed verdict of acquittal at this time.

COUNSEL FOR BRACE : Yo Tambien [me also].

(Emphasis added.) And, at the close of all the evidence:

COUNSEL FOR KNOX : Your Honor, while we’re

outside the [presence] of the jury I’d like to

renew my motion for a directed verdict.

COURT : Okay. And [counsel for Brace], [do]

you join in that motion on behalf of your

client?

COUNSEL FOR BRACE : I do.

Jacobson was not cited by Knox until his motion for release

pending appeal. And, in seeking a downward departure at

sentencing, counsel for Knox referenced the

propensity to commit a crime, not necessarily

the gumption or ability, aside from being

presented the opportunity.... In real life,

how likely would it be for [Knox and Brace] to

run into real Colombi a n drug lords? It’s27 pretty slim.... These aren’t the kind of

peo ple real drug lords employ. They didn’t

have the ability, they didn’t have the

criminal make-up.

This statement was made by counsel for Knox, not Brace. In any

event, this sentencing hearing statement, which was obviously not

presented prior to the jury’s verdict, did not present the district

court with the question of whether “positional predisposition” is

an element of, or subissue for, Brace’s entrapment defense, on

which the Government would have the burden of proof.

Notwithstanding these comments by Knox’s counsel at

sentencing, Brace’s brief on appeal (considered by the panel) did

not mention “positiona l predisposition”. That brief lists the

entrapment issue merely as: “Wheth er Brace was entrapped as a

matter of law by the undercover government agents”. Fourteen pages

into his 15-page section on “entrapment as a matter of law”, Brace

finally included the following language:

Clearly, Brace and Knox were not capable

of designing, funding and completing a money

laundering scheme on their own, without the

government’s substantial assistance and

inducement. As evidenced by their statements

and actions during the course of the

investigation, they were indeed “virgins” and

“wannabe” money launderers, not the real

thing. [S]ee United States v. Hollingsworth

, 27 F.3d 1196, 1202 (7th Cir. 1994) (real money

launderers or drug dealers would never have

dealt with or relied on such clear novices.)

As in Hollingsworth , Brace and Knox had no

prayer of becoming money launderers without

the government’s help in supplying the

contacts, the money and the know-how. “Anyone

can wire transfer money, but to get into the28 international money laundering business you

need underworld contacts,

... financial assets

or acumen, and the defendants had neither.”

Id.

, at 1 202. The H ollingsworth facts are

similar to this case in that the defendant had

placed a legitimate advertisement to sell a

Grenadian banking license, as Brace had with

the prospectus, and the undercover agents

played on his financial trouble to induce him

into money laundering with instructions and

money supplied by the government. I d.

, at

1199-1202. There, as in Brace’s case, the

government made no effort at trial to show

that a real money launderer would have

responded to the legitimate advertisement, or

prospectus in this case. I d.

, at 1199. As in

Hollingsworth

, the government agents in

Brace’s case turned two harmless, though weak,

foolish and greedy, men into felons. Id. , at

1202.

(Citations to the record omitted.)

These comments, and the cites to the non-binding decision in

Hollingsworth

, fall far short of presenting, for the first time on

appeal (for which we would engage only in limited plain error

review

—as urged belatedly by the Government at en banc oral

argument), the question of whe ther our court should add a

“positional predisposi tion” element when the circumstances of a

particular case might justify our doing so. For our court to do so

would require breaking new ground. These comments in Brace’s brief

certainly did not ask the panel to do so, or flag in any real way

that Brace was urging anything other than the standard, normal

predisposition analysis.

This is confirmed by the fact that the Government’s brief to

the pane l did not mention “positional predisposition”. In this29

regard, the now-vacated Brace-portion of the panel opinion stated:

“The government, however, fails to address the positional and

dispositional aspects of predisposition”. K nox

, 112 F.3d at 809

(vaca ted). Likewise, that now-vacated part of the panel opinion

states: “[I]n its brief, the government fails to even cite

Hollingsworth , let alone deal with it substantively”. Id . at 809

n.12 (vacated).

However, as stated, a “positional predisposition” contention

was never presented to either the district court or this court;

therefore, there was no notice to the Government that it was at

issue. As noted, H ollingsworth

, decided before Brace’s trial, was

never cited in district court. And, even though Brace cited

Hollingsworth in his brief to the panel, he did not sufficiently

raise “positional predisposition”. Therefore, it is most

understandable both that the Government would not have understood

it was at issue, and that, therefore, it did not feel it necessary

to distinguish a Seventh Circuit opinion, which we had not (and

have never) adopted, when our circuit already had existing, wellsettled case law on entrapment.

In fact, the law of our circuit is at least arguably contra to

the holding in Hollingsworth

. See United States v. Rodriguez , 43

F.3d 117, 126- 27 (5th Cir. 1995) (“The active, enthusiastic

participation on the part of the defendant is enough to allow the

jury to find predisposition.”) . We have consistently held that30

“[a] pros ecution cannot be defeated merely because a Government

agent has provided the accused with the opportunity or facilities

for the commission of the crime”. United States v. Williams , 613

F.2d 560, 562 (5th Cir. 1980) (citing United States v. Dickens

, 524

F.2d 441 (5th Cir. 1975), cert. denied

, 425 U.S. 994 (1976))

(em phasis added); a ccord United States v. Yater

, 756 F.2d 1058,

1062 n.6 (5th Cir. 1985), United States v. Jones

, 693 F.2d 343, 347

(5th Cir. 1982), United States v. Tobias

, 662 F.2d 381, 384-85 (5th

Cir. 1981), cert. denied

, 457 U.S. 1108 (1982), United States v.

Bradsby , 628 F.2d 901, 904 (5th Cir. 1980).

It is noteworthy that Brace did not file a reply brief with

the panel. Needless to say, had Brace felt “positional

predisposition” was at issue, he should have filed a reply brief in

order to comment on the Government’s failure to address that point.

Accordingly, based on the above-stated pertinent excerpts

presented in the district court and in Brace’s brief to the panel,

Brace did not sufficiently, much less specifically, raise the

subissue of “positional predisposition” before either the district

court or the panel. Moreover, even after the now-vacated Braceportion of the panel opinion nevertheless adopted the “positional

predisposition” element, Brace still does not appear, on rehearing,

to contend that this subissue is ne cessary for his appeal. His

lack of support for a separate “positional predisposition” element

is even m ore significant in the light of the clerk of this court31

advising counsel by letter that “the en banc court is primarily

interested in the question of positional predisposition raised in

the government’s petition for panel rehearing”.

In fact, Brace claims that this factor does not alter existing

case law in this circuit. In his supplemental (en banc) brief, he

states:

[T]he panel’s decision to apply the reasoning

set forth in Hollingsworth to Brace’s case

does not co nflict with or overturn a prior

Fifth Circuit case on entrapment because it

merely makes explicit a similar “readiness”

analysis already employed in this Circuit.

....

Perhaps, it is an imaginary and unnecessary

line that is being drawn when the

predisposition analysis is artificially

divided into “mental” factors and “positional”

factors.

....

It is not necessary to adopt a new factor in

the predisposition analysis, or to reinterpret Jacobson or set new precedent, in

order to reverse Brace’s convictions and

correct the injustice. W hile useful in a case

like this, it is not even necessa ry to adopt

the Hollingsworth “positional” predisposition

analysis to reach the conclusion that Brace

was entrapped as a matter of law. ... Brace’s

convictions can, and should, be reversed

simply by following Jacobson and this

Circuit’s other entrapment cases

.

(Emphasis added.)

Similarly, at en banc oral argument, Brace’s counsel seemed to

disclaim reliance on “positional predisposition”:32 COURT : Is it your position that the panel

opinion in this case did or did not impose a

new requirement on the government in

entrapment cases in this circuit?

COUNSEL FOR BRACE : I don’t think that it is a

new requirement by imposition. I think it’s

another way of the government bei ng able to

establish to a jury the idea that a defendant

had to [] be predisposed

....

....

I don’t think that it’s a new element that had

to be imposed or that was imposed by [the

panel opinion].

(Emphasis added.)

Again, the new “positional predisposition” element, utilized

by the panel, was neither preserved in district court nor raised

for the first time on appeal. Apparently, Brace did not consider

it a necessary subissue for the entrapment issue that was raised.

And, neither before, nor even after, the vacated panel opinion has

Brace specifically urged it.

It bears repeating — indeed, cannot be overemphasized — that

we do not add ress issues not presented to us. And, even if, in

taking a case en banc, we notify the parties of our interest in a

particular issue addressed by the panel opinion, as we did in this

case, that does not mean we can, or will, address that highlighted

issue if we determine during en banc review that it was not

presented on appeal to the panel. In sum, the vacated, quite

short-lived “positional predisposition” element or subissue is not33

before us, not even for limited plain error review. Accordingly,

we cannot address it.

2.

Consequently, the only issue presented by Brace relating to

his entrapment defense is whether, under existing relevant

precedent, the evidence was sufficient to prove, beyond a

reasonable doubt, that he was predisposed to launder money. As

show n supra , this issue w as preserved by Brace’s judgment of

acquittal motions.

As discussed, when the Government has induced a defendant to

c ommit a criminal act, and the defendant raises an entrapm ent

defense, the Government must prove that the defendant was disposed

to commit the criminal act prior to first being approached by

Government agents. J acobson

, 503 U.S. at 548. We will reverse the

verdict only if no rational juror could have found predisposition

beyond a reasonable doubt. B yrd

, 31 F.3d at 1335. The evidence

presented at trial was more than sufficient to support the jury’s

implicit finding of no entrapment.

At trial, Brace summarized his defense in his testimony: “I

chose to launder money because I was presented with the approval of

a ten million dollar loan that I desperately needed t o pay the

debts of the church. That’s why I laundered money.” But, he

admitted that he would have laundered the money even if the

undercover Agents had actually been drug traffickers. Moreover, he34

admitted that his wife told him to withdraw when she learned that

he was accepting drug proceeds.

As described supra

, Brace’s church’s financial difficulties

were quite apparent by 1993; he first met with undercover Agents in

March 1995. The evidence was sufficient to show that Brace was

predisposed to launder money even before that first meeting, in

which the $10 million offer was made. Wichita Teamsters Union

President Landwehr testified that, several times in September 1993

(long before Brace first met the Agents) and after, Brace had asked

if Landwehr had made contact with his “Mafia Friends”. Raccuglia

testified that, during staff me etings around April 1995, Brace

asked a staff member from New York, who had an associate who was a

nephew of John Gotti (who was convicted and sentenced to life

imprisonment in 1992 for murder and racketeering), if he had any

connections that would be useful in raising funds. Brace’s wife

would leave the ro om during these conversations regarding

“connections”, commenting that she did not want to hear it.

Landwehr and Raccugli a testified that, in this context, they had

heard Brace state, on different occasions: “The wealth of the

wicked is laid up for the righteous”.

As discussed supra

, in early March 1995, prior to Brace’s

fir st meeting with the Agents, Agent Cisneros recorded telephone

conversations with Clarkston, in which Clarkston stated that he had

a “major big time guy ” from “a church group” who was “very35

interested” in meeting with Agent Cisne ros and would like to

“close” the n ext weekend. During a meeting on 17 March 1995,

between Agents Gonzalez and Cisneros and Clarkston, Clarkston told

them that he knew a minister interested in laundering money and

that the minister’s financ ial advisor was already in town and

wanted to meet with them. Agents Gonzalez and Cisneros testified

that, when they asked Clarkston whether the minister knew that

Agent Gonzalez was a cocaine dealer looking to launder the proceeds

from cocaine sales, Clarkston informed them that the minister knew

about the source of the funds and did not care.

Later that same day, during a meeting between the Agents,

Clarkston, and Knox, the Agents informed Knox, early in the

conversation, that Agent Gonzalez was a Colombian drug trafficker

and that the deal involved laundering money from cocaine proceeds.

Agent Gonzalez testified that Knox responded that he and the

minister were aware of this and were not concerned about the source

of the money.

The above evidence, produced at trial, was more than

sufficient for the jury to conclude that Brace was predisposed to

launder the money before his first meeting with the Agents, in

which the $10 million offer was made. With respect to that first

meeting, as stated previously, the Agents offered the $10 million

before explaining that the money came from drug trafficking; but,

as demonstrated above, the evidence was sufficient for the jury to36

conclude that Brace was already aware of the source of the money.

More over, during this same meeting, Agent Cisneros stated

“that the money is from the sale of cocaine trafficking. That it

is narcotics money. ... [Undercover Agent Gonzalez] is asking you

to launder money”. Brace immediately responded: “I don’t have a

questionnaire

... where these monies come from” and that he had

received funds “from sources that, uh, wo uld be questionable”.

Brace stated later in the meeting: “I appreciate the fact that you

want to be very straight forward and up front with me.

... but, uh,

that does not concern me, really”.

Again, for an entrapment issue, our focus is on whether the

defendant was disposed to commit the criminal act prior to the

first contact by the Government. J acobson

, 503 U.S. at 548. But,

it is equally clear that “[ e]vidence of the defendant’s r eady

response to the solicitation

, as well as evidence of independently

motivated behavior that occurs after government solicitation

begins, can be used to prove that the defendant was predisposed,

i.e.

, ready and willing to [commit the crime] even before he was

contacted by the government”. B yrd

, 31 F.3d at 1336 (emphasis

added).

The evidence sufficiently showed that Brace’s predisposition

was evidenced throughout the undercover operation. At the second

meeting between Brace and the Agents, in which Brace took the first

$100,000 test amount, Brace clearly understood that the funds were37

proceeds from the sale of cocaine and that he was being asked to

money launder such funds. In fact, he took the money even after

the Agents told him that they had “crossed” three tons of cocaine

into the United States the previous day.

Raccuglia testified that, in April 1995, after Brace returned

to Kansas with the first test amount, Brace told him that the money

came from Colombian drug dealers; that the money was an advance on

$10 million; and that this was a test of his ability to transfer

the funds. Brace told Raccuglia that the drug dealers stored the

money in stas h houses, and had brought in a large shipment of

coca ine; but, that he was not concerned about the source of the

money, because he had received “authorization from God”. Raccuglia

testified that Brace had said, “I’ve heard from God like I’ve never

heard before”. Brace also talked with Raccuglia about installing

a safe in his church office and getting a separate security system.

After the second test transfer, Brace discussed with Raccuglia

and another staff member about opening a storefront check cashing

service in order to convert cash to checks while avoiding the

reporting requirement.

In sum, under exist ing relevant precedent, the evidence

produced at trial, highlighted above and detailed at the outset of

this opinion, is more than sufficient for a rational juror to

conclude, beyond a reasonable doubt, that Brace was predisposed to

launder money. See Byrd , 31 F.3d at 1335.38 B.

As noted, Brace did not object at trial to Fifth Circuit

Pattern Instruction No. 1.28, concerning entrapment. Accordingly,

in belatedly challenging it now, he concedes, as also noted, that,

to prevail on this issue, the instruction must have con stituted

plain error. F E D

. R. C RIM

. P. 52. Because the panel found that

Brace was entrapped, it did not address this issue with respect to

him; it did with respect to Knox.

As also noted, following Brace’s trial, a panel of our court,

in Hernandez

, 92 F.3d at 311, held that the entrapment pattern jury

instruction, identical to that given Brace’s jury, is correct under

Jacobson

. In fact, as discussed s upra

, Knox likewise failed to

object to the jury instructions and raised an argument identical to

Brace’s before the panel; the panel also held that H erna ndez

controls. Knox , 112 F.3d at 810 (non-vacated portion).

In short, there was no error, much less plain error. S ee,

e.g., Calverley

, 37 F.3d at 162-64 ( holding that plain error

requires error that is obvious , clear, or readily apparent, and

that affects substantial rights; and that, even if these conditions

are satisfied, reversal of such error is discretionary).

C.

In his brief to the panel, Brace contested his sentence on

three bases. Again, because the panel vacated Brace’s conviction,

it did not address his sentence.39 1.

First, Brace contends that he should have been given a

downward departure, due to Government manipulation. See U.S.S.G.

§§ 2D1.1, App. Note 17 and 5K2.12; 18 U.S.C. § 3553(b). The

district court may depart downward from the sente ncing range

prescribed by the guidelines based on mitigating circumstances “of

a kind, or to a degree, not adequately taken into consideration by

the ... guidelines”. U.S.S.G. § 5K2.0.

We may only review a trial court’s refusal to

grant a downward departure from the Guidelines

if the refusal was based on a violation of the

la w ... Thus, we have jurisdiction if a

district court’s refusal to depart downward is

premised upon the court’s mistaken conclusion

that the Guidelines do not permit such

departure, but we have no jurisdiction if the

court’s refusal is based on its determination

that departure is not warr anted on the facts

of the case.

United States v. Palmer

, 122 F.3d 215, 222 (5th Cir. 1997) (citing

United States v. Mitchell

, 964 F.2d 454, 462 (5th Cir. 1992)); see

also United States v. Lugman , 130 F.3d 113, 115 (5th Cir. 1997).

Brace claims that the Government intentionally manipulated his

sentence by inducing him to launder three “test” amounts ($100,000,

$100,000, and $150,000) as a precondition to receiving the $10

million that he was really seeking. These amounts mirror the

sentence increases in U.S.S.G. § 2S1.1(b)(2). Brace asserts

further that the Agents could have arrested him after any one of40

the illegal transfers, but instead were interested in “running up

the tab”.

But, Brace does not contend that the denial of a downward

departure was “premised upon the court’s mistaken conclusion that

the guidelines do not permit such departure”. S ee Palmer

, 122 F.3d

at 222. Accordingly, we lack jurisdiction to review the court’s

discretionary conclusion. See Lugman , 130 F.3d at 115.

2.

a.

Brace next maintains that the district court erred by denying

a three-level reduction in his base offense level because, at the

time of arrest, he and his co-conspirators had not completed all

the acts believed necessary to launder the $10 million.

Knox made an identical contention to the panel, and it found

no error. K

nox

, 112 F.3d at 812-13 (non-vacated portion). For the

reasons stated in the panel opinion with respect to Knox, we

conclude that the district court did not clearly err in denying the

three-level reduction with respect to Brace. See id.

b.

In conjunction with the above non-completion contention, Brace

also appears to contend that the district court incorrectly applied

the money laundering guideline, U.S.S.G. § 2S1.1, to the conspiracy

offense, resulting in an incorrect sentence. S ee 18 U.S.C. §

3742(f). Brace did not make this contention during sentencing;41

therefore, we review only for plain error. Calverley , 37 F.3d at

162-64.

Brace concedes that the district court correctly applied §

2S1.1 to the three substantive money laundering counts (totaling

$350,000), but asserts that it erred by also applying it to the

conspiracy count (totaling $10 million). The aggregated amounts of

these four counts resulted in a nine-level increase in Brace’s base

offense level (for more than $10 million), rather than a two-level

increase (for more than $200,000).

Brace relies on U.S.S.G. § 2X1.1(c), which provides that “when

an attempt, solicitation or conspira cy is e xpressly covered by

another offense guideline section, apply that guideline section”.

(Emphasis added.) Application Note 1 to § 2X1.1 lists the

attempts, solicitations, and conspiracies that are explicitly

covered by the guidelines, and § 2S1.1 is not listed. Therefore,

Brace contends, the district court should have applied § 2S1.1 to

the three substantive counts and § 2X1.1 to the conspiracy count.

Brace maintains that th is would result in an offense level of 25

for the three substantive counts under § 2S1.1 and an offense level

of 23 for the conspiracy count under § 2X1.1. Consequently, Brace

contends, the groupin g of multiple counts under § 3D1.2(b) would

result in an overall level of 25, with a corresponding sentencing

range of 57 to 71 months, rather than the 175 month sentence he

received.42

Brace was convicted on charges brought under 18 U.S.C. §

1956(h) (conspiracy to launder money) and 18 U.S.C. §

1956(a)(2)(B)(i) and (a)(3)(B) (money laundering). In sentencing,

the conspirac y and substantive counts were properly grouped

pursuant to U.S.S.G. § 3D1.2. The statutory provision for

conspiracy, 18 U.S.C. § 1956(h), provides: “Any person who

conspires to commit any offense defined in this section ... shall

be subject to the same penalties as those prescribed for the

offense the commission of which was the object of the conspiracy.”

Accordingly, in determining Brace’s sentence, the district

court did not plainly err by applying § 2S1.1 to the conspiracy and

substantive counts.

3.

Finally, Brace contends that, because of his accept ance of

responsibility, he is entitled to a two-level decrease in his base

offense level. Of course, whether the defendant demonstrates such

acceptance is a factual question; in fact, we will overturn the

district court’s finding on that question only if it is without

foundation. U

nited States v. Perez

, 915 F.2d 947, 950 (5th Cir.

1990); see also United S tates v. Rickett , 89 F.3d 224, 227 (5th

Cir.), cert. denied

,

___ U.S.

___, 117 S. Ct. 499 (1996); U nited

States v. Vital

, 6 8 F.3d 114, 121 (5th Cir. 1995) (giving “great

deference” to the district court’s acceptance of responsibility

findings).43

Brace relies on U.S.S.G. § 3E1.1(a), which provid es for the

two-level decrease “[i]f the defendant clearly demonstrates

acceptance of responsibility for his offense”. Application Note 2

provides, in pertinent part:

Conviction by trial, however, does not

automatically preclude a defendant from

consideration for su ch a reduction. In r are

situations a defendant may clearly demonstrate

an acceptance of responsibility for his

criminal conduct even though he exercises his

constit utional right to a trial. This may

occur, for example, where a defendant goes to

trial to assert and preserve issu es that d o

not relate to factual guilt ( e.g.

, to make a

constitutional challenge to a statute or a

challenge to the applicability of a statute to

his conduct). I n each such instance, however,

a determination that a defendant has accepted

responsibility will be based primarily upon

pre-trial statements and conduct

.

(Emphasis added.)

Brace claims that he satisfied § 3E1.1 because he went to

trial only to preserve the “legal issue” of entrapment. Along this

line, he notes that he fully admitted, in his pretrial confession

and trial testimony, to his “factual guilt”.

The Government responds correctly that, although Brace

admitted committing the criminal acts

, his assertion of entrapment

was a denial of factual guilt, because it is a denial of subjective

predisposition and, consequently, of the required element of mens

rea

.

In other words, an entrapment defense is a challenge to

criminal intent and thus to culpability. Accordingly, this is not44

one of those “rare situations”, contemplated by the guideline

commentary, in which a defendant may proceed to trial and still

satisfy § 3E1.1(a).

III.

Possibly, there remains for another day and another case the

issue of whether, under the appropriate circumstances, the

Government must prove “positional predisposition” when an

entrapment defense is raised. That issue was not presented in this

case; therefore, mindful of our limited and proper role, we do not

address it. With that issue not being in this case, we are faced

instead with a straightforward application of well-established and

understood precedent as to entrapment and sentencing. For the

reasons given, the judgment as to Brace is

AFFIRMED.